Concluding remarks

There are several elements that no longer make IPRED fit for purpose in the digital environment. These largely pertain to the lack of a clear distinction between commercial operations and infringement at the consumer level and the problems this creates in the

285 _{Spotify, for instance, has published their own ‘Spotify’s impact on piracy’ research, which reviews a} small number of country studies that suggests that legal streaming services are turning the tide against piracy, with previously illegal users migrating to legal consumption (Spotify, 2013,

https://www.spotifyartists.com/spotify-explained/#spotifys-impact-on-piracy). Other studies that look at the levels of traffic to individual legal services compared with traffic to sites known to contain very high levels of copyright infringing content suggest similar conclusions. For instance, a 2012 Sandvine report covering North America reported that Netflix represented 24.4% of total Internet traffic volume in North America over one 24-hour period, well ahead of BitTorrent, at 14.2%. See:

management and quantification of damages and legal expenses that can be considered prone to abusive, strategic litigation or insufficiently dissuasive.

The sheer recourse to the instrument of civil injunctions has made implementation very heterogeneous across Europe. This is not a specific issue of copyright enforcement in the digital environment, but extends to intellectual property rights in general. What makes the situation peculiar in the digital environment is that this creates an uneven competitive field in terms of business risks and potential liability across Europe and creates incentive for regulatory shopping.

In a number of cases the implementation of IPRED in the online environment at the consumer level has been made impossible by different national interpretations of privacy law, and the CJEU has substantially endorsed this cujus regio eius religio regime by giving EU Charter of Human Rights protection to the different national understandings of prevailing provisions, which has in turn fostered the creation of a number of administrative regimes replacing enforcement of IPRED and the InfoSoc Directive online with ad hoc provisions. Likewise, to ensure a right balance between the conflicting needs of enforcing copyright online and protecting the specificity of the Internet’s architecture as foreseen in the e- Commerce Directive, the Commission is called on to manage a correct interpretation of the Directive’s liability exemptions. In particular, the CJEU has recently shown that, as things stand, the only insurmountable barrier for copyright holders wishing to enforce copyright is the principle that restricts Member States and national ISPs with general obligations to monitor online content, but that no obstacle should be created by national courts on other types of injunctions that do not conflict with the aforementioned principle irrespective of ISP liability considerations, including website blocking orders. Filtering apart, this leaves open the issue of what can technically be done, as technology rapidly evolves, who should bear related costs, and whether these are reasonably proportionate to the value of the rights being enforced.

As a result, the concrete modalities this exoneration applies as well as the modalities through which costs can be imposed on ISPs in the other cases have been so poorly defined that codes of conduct have been produced to reduce legal uncertainty. This has further contributed to a very fragmented enforcement scenario across Europe.

For different reasons the impact of IPRED and the InfoSoc Directive on copyright enforcement in the online environment can therefore be deemed residual when compared to other instruments available at the Member State level and related provisions are being increasingly replaced by administrative and criminal instruments and codes and conduct including the recently appearing ‘follow the money’ approaches.

These developments create the parallel problem of ensuring an equal right to access and uniformity in the requirements Member States follow in allowing simple and informal notices (i.e. not through judicial orders) and on how to ensure a right to a fair trial before a judicial authority to parties that might be affected by abusive or mistaken notices and content removals in the context of code of conduct-based proceedings.

Very limited data are available on the actual impact of the various provisions and strategies in curbing copyright infringement online, and comparisons between different approaches face notable methodological limitations, not least because of still unsolved underlying uncertainties and disagreements on how to measure the economic value of online copyright infringement itself. This difficulty in making comparisons is compounded by the fact that stakeholders’ enforcement choices seem to be influenced by the features of the

administrative and legal systems they operate in and the implicit subsidies they provide. As a result, no clearly preferable approach has appeared. The conduct of operators themselves and the ongoing debate seem to show that there are great expectations of the potential effectiveness of the newly introduced ‘follow the money’ approaches, which however remain relatively untested. And instances of expectations not met by results have already been experienced in the field of online copyright enforcement in the past.

Most important, preliminary evidence shows that contextual factors and the availability of high quality legal content online appear to be even more important than enforcement in influencing the level of infringement.